By PHIL KABLER
Charleston Gazette-Mail
CHARLESTON, W.Va. — On a party-line 22-12 vote, the West Virginia Senate on Monday passed legislation to retroactively clean up ambiguous sections of the state’s right-to-work law — a new law currently being challenged in Kanawha Circuit Court (SB 330).
In obtaining a preliminary injunction against the law last summer, the state AFL-CIO and other labor unions primarily argued that the legislation is an illegal taking of union assets, since state and federal law requires unions to represent all employees in a union shop, including those who opt out of paying union dues under the law.
However, the lawsuit also cites two sections of the law that are fuzzily written, one that would seem to exempt building and construction trade unions, and a definitions section that could be interpreted to apply the law to public-employee unions only.
The bill removes those two provisions from what is known in state Code as the Workplace Freedom Act.
On Monday, Sen. Corey Palumbo, D-Kanawha, questioned why the revisions were being made retroactively, particularly since the disputed sections are part of the legal challenge.
“Because it is a clarification of what the Legislature’s original intention was, it makes sense to apply it retroactively,” Senate Judiciary Chairman Charlie Trump, R-Morgan, responded.
Trump said enforcement of the law has been blocked since Kanawha Circuit Judge Jennifer Bailey announced following hearings in August that she would be issuing a preliminary injunction blocking enforcement of the law.
“The application of the act has effectively been enjoined since August of last year,” Trump said.
In issuing the written preliminary injunction last week, Bailey said the law could present financial harm to labor unions, saying that workers would be “seriously discouraged” from joining unions.
She stated, “Why, the employee would ask, should I pay for something that the law requires be made available to me for nothing?”
She said the law could “seriously burden a union’s ability to recruit and retain members.”
While the primary issue addressed in the injunction is over whether the law amounts to an illegal taking, Bailey addressed the ambiguous language in the law regarding building and construction trades.
“The ambiguity of this sentence is such that an entire industry … has no certainty whether the so-called RTW legislation applies to their collective bargaining negotiations or agreements,” Bailey stated.
During Monday’s floor session, Sen. Mike Romano, D-Harrison, questioned whether the Legislature should “change the playing field” to affect legal challenges pending in court.
“When we interject ourselves into the third branch of government,” he said, “I think we make a mistake, both morally and constitutionally.”
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